Access to Digital Accounts After Death

In this digital era, if you die or become incapacitated, it is likely that an executive, fiduciary, personal representative or a family member will want access to your online banking accounts, investment portfolio, social media sites or email. If you have not entrusted someone with the usernames and passwords to such accounts, how will your bills get taken care of? Who will monitor or disable your email or Facebook account? Will social media sites allow you access without a court order?

Fifteen states introduced legislation this year proposing to grant expanded powers to an executor, personal representative or administrator of a person’s digital assets: California, Louisiana, Massachusetts, Maryland, Maine, Michigan, North Carolina, Nebraska, New Hampshire, New Jersey, Nevada, New York, North Dakota, Oregon and Virginia. Some of the bills were filed in response to relatives’ emotional stories about failed attempts to memorialize or continue a social media account as a way to remember or feel a closer connection with a family member who has died.

So far, seven states have passed laws governing digital asset management after death: Connecticut, Idaho, Indiana, Nevada, Oklahoma, Rhode Island and Virginia. Maine passed a law this session to study the issue over the interim. The laws vary widely. The Nevada law originally proposed to grant a broad right of access to the contents of a deceased user’s email, social networking and other online accounts. However, it was watered down to only allow an executor to terminate such accounts after tech companies and Planned Parenthood weighed in against it.

Some of the bills debated this year proposed that the personal representative have the power to take control of, conduct, continue, or terminate social networking accounts of a deceased person. Some bills explicitly superseded an online service’s terms of service, included the contents of a deceased person’s email and/or allowed an executor to trump the decedents own wishes and access information the person specifically requested in a will or directly to an online service be kept private.

The Internet Coalition urged legislators to back off of this type legislation in every state but California. IC explained that this is a very complex issue and they should consider user privacy rights, data production and retention, access, authentication, fraud, and conflicting state and federal legal requirements.

Internet Coalition argued that both the 1986 Stored Communications Act and voluntary terms of service agreements prohibit companies from sharing a person’s information, even if such a request were included in a last will and testament. Under the federal law, Internet companies that provide storage for digital assets are prohibited from disclosing account information, even to families, without a court order. They say unless the federal law is changed, laws passed at the state level could be unconstitutional.

The Internet Coalition supports California SB 849, a bill that strikes the right balance between the privacy rights of decedents, fiduciaries’ access to online accounts, and email service providers’ requirements under federal law.

This bill sets out a clear process for fiduciaries to request information contained in a decedent’s email account while also recognizing that providing executors with broad access to online accounts, that could very well contain private and confidential communications, such as emails to a family member, doctor or lawyer, is unsound public policy. SB 849 rightly allows, but does not require, email providers to grant fiduciaries access to a decedent’s accounts. Since SB 849 is also in line with other state laws that indemnify email service providers that provide access to a decedent’s accounts pursuant to a court order, we support this legislation and urged California legislators to adopt it.

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Internet Coalition (IC) is a trade association whose members include companies such as: 1-800-Flowers, Amazon.com, AOL, IAC, Expedia, Experian, eBay, Facebook, FTD, Google, Match.com, Online Publishers Association and Yahoo! Our mission is to educate state lawmakers of sound public policy that encourages innovation in the Internet, which is one of the biggest growth sectors of our nation’s economy.